In Smith v General Services Administration (CAFC No. 2018-1604, 7/19/19), the appeals court has slapped down MSPB’s (Merit Systems Protection Board) handling of a whistleblower defense in a removal appeal.
As detailed in the opinion, Mr. Smith had a positive career at GSA marked by good performance evaluations and no discipline until he became concerned that the agency was failing to diligently collect rent and was riddled with inefficiency. Smith began writing reports to upper level managers–bypassing his supervisor and other interim managers–critical of agency processes. This led to his supervisors imposing restrictions on Smith sending such messages to the Regional Commissioner, characterizing them as “inappropriate.” (Opinion p. 3)
The contentious back and forth lasted through several different supervisors until his newest one had had enough of what he characterized as disrespectful behavior on Mr. Smith’s part. This supervisor proposed Smith’s removal, charging him with violating IT policy, failing to follow supervisory orders, and disrespectful conduct toward a supervisor. The agency removed Smith and he appealed to the Merit Systems Protection Board (MSPB or the Board).
Smith argued that the charges did not support the discipline and he also raised the defense that the agency retaliated against him because of his whistleblowing. (p. 5)
The Administrative Judge concluded that Smith was a whistleblower, and the timing of the agency’s removal action was such that the whistleblowing activity contributed to the decision to remove him. However the AJ further concluded that the agency had “shown by clear and convincing evidence that it would have removed Mr. Smith regardless of his whistleblowing….” And therefore sustained the removal. (p. 6)
The appeals court disagreed with MSPB’s insufficient analysis. The court addresses the respective burdens in such a case. The whistleblower defense requires the employee to prove he made a protected disclosure that contributed to the agency action. The burden then shifts to the agency to show “by clear and convincing evidence that it would have taken ‘the same personnel action I the absence of such disclosure.’” (p. 8)
Citing Carr v. Soc. Sec. Admin., the court requires the Board to consider three “nonexclusive factors” in deciding whether the agency has met this burden: the strength of evidence to support the removal; whether there was motive to retaliate by officials who made the removal decision; and evenness of discipline against non-whistleblower employees. (p. 8)
The court concludes in this case that the MSPB failed to consider adequately whether the agency’s decision met this three -factor test. Here is the particular language from the AJ’s decision that the court found particularly wanting: “I further find based on the strength of the agency’s evidence that it proved by clear and convincing evidence that it would have taken the same personnel action …absent any disclosure.” (p. 9)
Concluding that the MSPB failed to follow the Carr factor analysis, the appeals court has tossed out the Board’s decision and remanded the matter to the MSPB for reconsideration. (p. 18)
Mr. Smith clearly won this round.